Filed 3/30/22 P. v. Smith CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Dejarrne Joden Smith was convicted of several crimes involving his attack and rape of a woman who was walking home in the early morning. On appeal, we remanded for resentencing in light of Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393). Defendant now appeals from the resentencing, contending we should again remand for resentencing in light of more new legislation, Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567). The People concede and we agree. Thus, we vacate the sentence and remand for resentencing. In all other respects, we affirm.

BACKGROUND

On January 17, 2015, at about 1:50 a.m., when L.T. was walking home from a friend’s house, defendant ran up to her, struck her, threatened her, and raped her. (People v. Smith (Apr. 29, 2020, F076837) [nonpub. opn.].)

On November 2, 2017, the Kings County District Attorney charged defendant with eight counts and various allegations related to defendant’s attack and rape of L.T.

On November 6, 2017, a jury found defendant guilty of kidnapping for rape (Pen. Code, § 209, subd. (b)(1);[1] count 1), forcible rape (§ 261, subd. (a)(2); count 3), assault by means of force likely to produce great bodily injury (§ 245, subd (a)(4); count 4), and criminal threats (§ 411; counts 5 & 6). The jury found true various allegations connected to count 3. Defendant admitted allegations he had suffered a prior serious felony conviction (§ 667, subd. (a)) and a prior “strike” conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and had served two prior prison terms (§ 667.5, subd. (b)).

On December 14, 2017, the trial court sentenced defendant to six years plus 56 years to life, as follows: on count 6, the upper term of six years (three years, doubled pursuant to the Three Strikes law); on count 3, 50 years to life (25 years to life, doubled pursuant to the Three Strikes law); plus a five-year prior serious felony conviction enhancement and a one-year prior prison term enhancement. The court stayed the terms on the remaining counts. Defendant appealed.

On April 29, 2020, we struck the two prior prison term enhancements pursuant to Senate Bill No. 136 (2019−2020 Reg. Sess.) and remanded for resentencing in light of Senate Bill 1393. (People v. Smith, supra, F076837.)

On March 16, 2021, at resentencing, the trial court declined to strike the prior serious felony enhancement (§ 667, subd. (a)) pursuant to Senate Bill 1393 but reduced defendant’s restitution fines.

On April 27, 2020, defendant filed a notice of appeal.

DISCUSSION

The parties agree, as do we, that Senate Bill 567 applies to this case and requires that we remand for resentencing under amended section 1170, subdivision (b). Senate Bill 567, which became effective on January 1, 2022, modified section 1170, subdivision (b) to require imposition of the middle term of imprisonment unless circumstances in aggravation justify imposition of a greater sentence and are found true beyond a reasonable doubt or stipulated to by the defendant. (Stats. 2021, ch. 731, § 1.3.) The People concede that the trial court relied on circumstances in aggravation in imposing the upper term on count 6 that were neither found true beyond a reasonable doubt nor admitted by defendant. We note that the court also imposed the upper term on other counts, although it thereafter stayed those terms, and thus it must reconsider those terms as well.

We further note that the abstract of judgment does not reflect the terms orally imposed then stayed. When a trial court determines that a conviction is subject to section 654, it must impose a sentence and then stay the execution of that sentence, the stay to become permanent upon the defendant’s service of the portion of the sentence not stayed. (People v. Duff (2010) 50 Cal.4th 787, 796; People v. Alford (2010) 180 Cal.App.4th 1463, 1469.) It is improper to simply stay the imposition of sentence. (Duff, at pp. 795–796; Alford, at p. 1468.) Furthermore, the clerk must assure that the abstract of judgment reflects the terms imposed, even if stayed, as orally pronounced by the court. (See People v. Mitchell (2001) 26 Cal.4th 181, 185–186.)

DISPOSITION

The sentence is vacated and the matter remanded to the trial court for resentencing in light of Senate Bill 567 and amended section 1170, subdivision (b). The clerk is directed to prepare an amended abstract reflecting the new sentence, including any stayed terms, and forward copies to the appropriate entities. In all other respects, the judgment is affirmed.

* Before Levy, Acting P. J., Peña, J. and Snauffer, J.

[1] All statutory references are to the Penal Code.